May 9, 2018 – The Wisconsin Supreme Court could hear a case, on bypass from the Wisconsin Court of Appeals, to decide whether a grandmother is entitled to additional visitation time with her granddaughter, including an annual weeklong vacation.
Grandmother Jill Kelsey filed a petition requesting visitation rights under Wis. Stat. section 767.43(3), which says the court may grant reasonable visitation rights to a grandparent if “the grandparent has maintained a relationship with the child or has attempted to maintain a relationship with the child but has been prevented from doing so by a parent who has legal custody of the child,” among other requirements.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Kelsey had significant contact with her granddaughter, Ann (age 7), until she reached school age. In 2015, Kelsey planned a Disney World vacation, but Ann’s parents (including Kelsey’s son) said no. The relationship between Ann’s parents and Kelsey soured and Ann’s parents allowed a minimum level of contact between Kelsey and Ann.
Kelsey’s petition followed. The parents testified that court-ordered visitation was not in Ann’s best interest, noting instances in which Kelsey placed Ann in danger, including allowing her to ride a horse with no helmet and letting her have a sip of alcohol.
The circuit court granted Kelsey visitation one Sunday per month and a one-week summer vacation with no restriction on where Kelsey could take Ann.
However, the circuit court ordered Kelsey to provide safety equipment for activities like horseback riding. The court also ordered Kelsey not to smoke in the same vehicle or room with Ann, or to drink in excess when Ann was in Kelsey’s care.
The parents filed a motion for reconsideration, arguing that the court’s order violated their substantive due process rights as parents. The court denied the motion, concluding the court could overrule their decision if in Kelsey’s best interest.
Recently, in Michels v. Lyons, 2017AP1141 (May 8, 2018), the District III Wisconsin Court of Appeals certified the case to the Wisconsin Supreme Court for review to clarify “the standard of proof required for a grandparent to overcome the presumption favoring the parent’s visitation decision,” noting the parent’s fundamental right to parent:
“Any statute that infringes on a fundamental liberty interest is subject to strict scrutiny. “Under strict scrutiny review, a statute must be narrowly tailored to advance a compelling state interest that justifies interference with a fundamental liberty interest.”
The appeals court noted that most states require parents to show harm before a court can interfere with a parent’s decision regarding grandparent visitation. Other states “allow the court to overturn the parents’ decision upon a showing by clear and convincing evidence that grandparent visitation is in the child’s best interest.”
Wisconsin decisions say courts must apply a presumption that a fit parent’s decision regarding grandparent visitation is in the child’s best interest, but courts may still determine what is in the child’s best interest, after applying the presumption.
But “Wisconsin courts have not yet determined the standard for what is required to overcome the presumption in favor of the parent’s decision,” the appeals court noted.
That is, Wisconsin decisions do not address if overcoming the presumption requires the parents to show harm to the child if grandparent visitation is granted, or “whether the presumption favoring the parent must be overcome by clear and convincing evidence.”
“We anticipate numerous cases involving grandparent visitation rights,” notes the certification, which the supreme court would hear upon a majority vote of justices.
“We believe circuit courts, parents and grandparents would greatly benefit from the Wisconsin’s Supreme Court’s definitive clarification of the standard of proof on this important issue involving a fundamental right.”